Contracts,

Change Order Administration

and Claims Management

Dieter J. Preiser, PMP

PreiserConsulting
dieter@preiserconsulting.com
What is a Contract?
✔ A contract is a mutual business agreement recognized by
law under which one party undertakes to do work (or
provide a service) for a second party for a “consideration”.
✔ A contract is an agreement between two parties, one called
the contracting party or owner and the other the contracted
party or the contractor to perform a previously determined
scope of work for a previously determined amount of
money.

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Why do we need written
contracts?
✔ Basic lack of trust
✔ Clearly establishes the risks and obligations of each party
✔ Provides means by which performance can be assessed and
measured
✔ Provides means by which breaches can be identified
✔ Provides means by which default can be established
✔ Establishes the owner’s means of control
✔ Establishes the contractor’s scope of work

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What does a written contract do
for us?
✔ A written contract provides the document
by which risks, obligations, and
relationships of both parties are clearly
established, thus ensuring the performance
of these elements in a disciplined manner.

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Goals of Contract Management
and Administration
✔ The effective management and
administration of contracts results in
reducing risks, maximizing cost savings,
minimizing claims, and improving
economic return.

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How do contracts minimize
risks?
✔ A contract provides the means to manage and allocate risks.
You want to “share” the risks appropriately through your
contractual relationship.
✔ Your contracting strategy needs to be built around the
relationship between the terms and conditions, and the
accompanying risks and cost impacts.
✔ The type of contract and the specific language used should flow
from these relationships.
✔ Failure to manage risks in this manner can result in cost
overruns, loss of market, or loss of quality.

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Risk Areas
✔ Cost - possibility of overruns and other
financial losses
✔ Time - delays in schedule and resultant loss
of market
✔ Quality - loss of desired quality of
engineering and construction

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Contracting Strategy
✔ Priority of project management goals
– Cost, schedule, quantity
✔ Status of project definition
✔ Schedule and cost constraints
– Facility startup date and availability of capital
✔ State of the economy
– Market urgency for product
– Number of competitive bidders
– Workload of competitive bidders
– Vendor backlogs

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Types of Contracts
✔ Lump-sum fixed price
✔ Unit price
✔ Fixed price with escalation (price adjustment)
✔ Guaranteed maximum price (target price)
✔ Cost plus incentive fee (time/cost goals)
✔ Cost plus fixed fee
✔ Cost plus percentage of cost

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Elements of Cost
✔ Labor Costs
✔ Material Costs
✔ Equipment Costs
✔ Overhead Costs - Direct and Indirect
✔ Profit

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Analysis of Cost
DIRECT COST INDIRECT COST

Items of Work OVERHEAD COSTS Profit Margin

At the Job Operating

Costs which Difference
are incurred Costs which Costs which between all
for specific cannot be cannot be costs and
items of work allocated to allocated to all income
specific items specific jobs

The Work The Site The Firm The Motive

COST FEE

TOTAL CONTRACT SUM

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Fixed Price vs. Cost Reimbursable
Definitions
✔ Fixed Price ✔ Cost Reimbursable
Agreement to perform the Agreement to perform
scope of work at a set work on a reimbursable
price regardless of basis.
Contractor’s actual cost.

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Fixed Price vs. Cost Reimbursable
Basic Conditions
✔Fixed Price ✔Cost Reimbursable
Fair and reasonable price can be
established using a detailed scope of
work, complete design and
specifications and known
environmental and business
conditions.
Adequate professional inspection &
supervision provided by other parties.
Risk: Contractor assumes maximum
amount of risk, and has incentive to
perform economically.
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Scope & cost of work not defined
sufficiently to allow fixed price quotes.
Qualified contractors unwilling to accept
financial risk of fixed price.
Owner wishes to exert more control,
develop design as project progresses, or
achieve technology transfer from
contractors.
Owner is required to be more sophisticated
in contractor selection and oversight.
Risk: Owner accepts most risk
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Fixed Price vs. Cost Reimbursable
Advantages
✔ Fixed Price
Less risk on the Owner, at least
on the surface.
Substantial amount of case law
and administrative protocol.
Overall cost known before
project begins.
Minimal Owner involvement
Owner realizes price
competition.
Contractor has incentive to
finish early.
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✔ Cost Reimbursable
Construction can be phased.
Changes can be accommodated
more easily.
Reduces adversarial
relations:Contractor & Owner
are partners.
Reduced Contractor
contingency included in price.
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Fixed Price vs. Cost Reimbursable
Disadvantages
✔ Fixed Price
Adversarial relations
Contractor may bear risk for
conditions beyond his control
Changes more likely to end in
dispute.
Contractor has no direct
financial motivation to provide
superior quality or service.
Extra time required to
complete the plans and specs.
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✔ Cost Reimbursable
Generally, the construction costs
are higher.
Increased Owner involvement.
Final cost not known until
project is finished.
More detailed negotiations and
contractor selection process.
More cumbersome
administrative and bookkeeping
requirements.
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Fixed Price vs. Cost Reimbursable
Applicability
✔ Fixed Price ✔ Cost Reimbursable
Routine projects. High-risk industrial or
Conditions with an manufacturing projects
abundance of qualified (petrochemical, power,
contractors. offshore).
Public works projects. Situation where qualified
contractors are scarce.
R&D projects (aerospace,
military).

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Types of Contracts
Min

Min
Lump Sum
Lump Sum + Variation
A
dm
ea
su Bill of Quantities
Owner's Flexibility

re
m
Owner’s Control

en Schedule of Rates
t
(C
o nt
ra
ct
Ty
pe Co
)
st Cost + Fixed Fee
Re
im
bu Cost + % Fee
rs
ab
le
Max
Max

Client‘s Risk
Min Max
Contractor's Incentive to Perform
Max Min
Firm Client’s Project Definition Changeable
Project Schedule Duration vs.
Type of Contract
5
Engineering
Contract Type

Required
4 to Start
Construction
Construction
3
Start of
Project
Construction
2 Completion

1
Project Duration

1. Cost Reimbursable w / %Fee

2. Cost Reimbursable w / Fixed Fee
3. Cost Reimbursable w / Incentive
4. Guaranteed Maximum Price
5. Lump-Sum Fixed Price
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Phased Construction
Traditional Construction Method

Design Bid/Award Construction Phase

(Single Construction Contract)

Phased Construction Method

Design
Foundations

Mechanical

Landscape
Structures

Electrical
Sitework

Construction Phase
(Multiple Construction Contracts)
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Precontracting Activities
Score
Establish Prepare Contractors Pre-Quals Bid Slate
Plan of Pre-Qual Develop and Prepare Management
Action Documents Response Bid Slate Approval

Prepare Release
Management Management Pre-Qual
Submittal Review

Prepare Review Revise Prepare Release

Contract Contract Contract Job Ex Bid
Draft Draft Draft Meeting Package

Job Ex
Meeting

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Pre-Contracting Activities
Receive Contract
Bids Award
Contractor Tech Price Prepare
Prepares Bid Bid Management Management Prepare Contractor Owner
Bid Review Review Recommendation Review Contract Signs Signs

Prepare
Company Functional
Estimate Review

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Pre-Qualification Process
✔ Financial Strength and Credit Rating
✔ Previous Experience on Similar Projects
✔ Organization
✔ Loss Prevention Program
✔ QA/QC Program
✔ Equipment Availability
✔ Availability of Key Personnel
✔ Current and Future Workload

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Components of Contract Package
✔ Invitation for the Bid
✔ Instructions to Bidders
✔ Bid Form
✔ Contract Form
✔ Schedule of Plant
✔ General Conditions or Provisions
✔ Special Conditions, Supplementary Conditions or
Special Provisions

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Components of Contract Package
✔ Performance Schedule
✔ Price Schedules
✔ Scope of Work
✔ Specifications
– Performance Specification
– Proprietary Specification
✔ Design Drawings

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Contract Bonds
✔ Bid Bond (5% to 10% of contract price)
✔ Performance Bond (50% of contract price)
✔ Payment Bond
✔ Maintenance Bond

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Insurance
✔ Public Liability Insurance
– Provides coverage against bodily injury and property damage to
third parties as the result of construction activities.
✔ Builder’s Risk Insurance
– Protects against loss/damage of structures and equipment
✔ Comprehensive Automobile Liability Insurance
✔ Special Policies

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 CHANGE ORDER
ADMINISTRATION
Change Order Administration
✔ An organized effort to eliminate
unnecessary cost and time impact as a result
of processing project work outside the
scope of the contract.

A Change is not a Claim.

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Contract Change Clause
✔ Fixed price contract require a change
clause.
✔ Establishes the owner’s right to make
changes and provides a mechanism for their
administration and resolution.

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Types of Changes
✔ Formal
– Via contract change clause
✔ Constructive
– Action of owner that has the effect of directing a
change, although not initially documented as such.
✔ Cardinal
– Change totally out of scope of original contract.
– Should re-negotiate entire contract.

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Change Orders
✔ Virtually all project have change orders.
✔ Need to recognize their implications.
✔ Set up an effective management system to
handle them.
✔ Minimize cost/time impact and prevent
costly legal action.
✔ Modification of the contract.

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Sources of Change Orders
✔ Unanticipated site conditions
✔ Owner requested design modifications,
additions or deletions
✔ Clarification of contract documents

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Disagreements
✔ Change or design development
✔ Scope of the change
✔ Material cost
✔ Equipment rental rates
✔ Acceptable profit
✔ Overhead cost
✔ Consequential effects of the change

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Change Orders
✔ Prior approval
– Adverse effect on construction
✔ Unilateral change order
– Urgent situations or conditions
✔ After the fact

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Change Order Process

Change Order Bid C.O.

Identification C.O. Closing Award
Design
C.O. Cost/Schedule Bid Bid
Request Analysis Period Analysis

Prepare
Bid Package

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Cost of Changes
Engineering Construction

t
os
C

Fle
xib
ility

Time

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CLAIMS MANAGEMENT
Typical Claims Against Owner
✔ Poor project planning
✔ Scope changes
✔ Constructive change orders
✔ Errors and omissions
✔ Contract accelerations and stoppages
✔ Site access or availability
✔ Other construction interference and delays
✔ Strikes and acts of God
✔ Low bidders

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Typical Claims Against
Contractor
✔ Late completion - liquidated damages
✔ Out of specification materials
✔ Defective work
✔ Property damage

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Delays
✔ Excusable Delay
– Beyond control of owner or contractor
✔ Inexcusable Delay
– Beyond the control of the contractor
– Owner caused changes to work
– Differing site conditions
– Suspension or termination of work by owner
✔ Concurrent Delay
– Two or more delays in same time frame

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Claims Analysis
✔ Brief of the case
✔ Owner’s position
✔ Contractor’s position
✔ Analysis and evaluation
✔ Recommendations

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Claim Prevention Suggestions
✔ Carefully analyze and consider exactly what you
are building and precisely how it will be built so
the contractor does not have to assume or guess
about any aspect of the job.
✔ Complete the project design before the contract is
bid, and if some parts of the project cannot be
completely designed at bid stage, clearly identify
them and its possible impact.

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Claim Prevention Suggestions
✔ Conduct a thorough review of the design prior to the bid
stage to identify and correct any design errors or
inadequacies.
✔ Give bidders sufficient time to carry out a complete
review of the bid package and an investigation of the
construction site.
✔ Allow enough construction time, remember in this
context, time is not money. Do not assume that bidders
will simply increase their bids to cover a short schedule.

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Claim Prevention Suggestions
✔ Identify with enough anticipation what type of
contract will best suite the project.
✔ Think about every sentence included in the
contract, why it is there and whether it is
necessary.
✔ Clearly identify in the contract every operation
that the contractor must accomplish to complete
the job.

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Claim Prevention Suggestions
✔ Draft for clarity, not confusion. Use standard list
of definitions, and always use the same defined
word consistently.
✔ Consider material arrival schedules as part of the
contract. Identify long-lead items and possible
vendors in the bid package. Avoid sole-source
procurement unless absolutely necessary.
✔ Clearly identify who will be responsible for
material delays.

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Claim Prevention Suggestions
✔ Analyze all potential bidders before preparing a
bid slate. Examine contractors’ prior contracting
experience, claims history, management
capabilities and financial ability.
✔ Carefully analyze contractors’ technical proposal
paying particular attention to the proposed method
of construction and the planned number of man-
hours claimed necessary to execute the job.

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Claim Prevention Suggestions
✔ Seriously question the contractors’ excessively low bid.
✔ If you are forced to accept a low-ball contractor,
anticipate a claim and work on it from the beginning.
✔ Be reasonable when analyzing the contractors’
complaints about changes and omissions. Negotiate
settlement as soon as possible and keep in mind that the
older the issue, the more difficult it will be to settle.

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Claim Prevention Suggestions
✔ Appreciate the contractors’ right to perform the
contract in any fashion he deems appropriate, as
long as the methods and results conform to
contractually specified standards.
✔ Keep in min that the owner has the obligation to
provide: a suitable construction site, accurate
plans and specifications, well-defined scope of
work, and inspection without interference.

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Claim Prevention Suggestions
✔ Understand how many factors can affect a contract and
delay and disrupt the work. Cooperate to establish an
atmosphere of understanding and mutual respect.
✔ Keep strict control of: progress reports, daily meetings,
schedule revisions, cost estimates, change orders and their
justifications, correspondence.
✔ Develop a solid document control plan.

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 Contract Disputes Resolution
Continuum
Review Contract
Identify Disputes Documents for
Policies and Risk Assessment Resolution Completeness Budget and
PM Selection Procedures and Allocation in Contract and Accuracy Contract

Phase I - Program/Project Planning (NO COST RESOLUTION RISK)

A Problem and Change Change Order Denial of
Budget and Pre-construction Request for Order Estimate and Change Order Entitlement
Contract Meeting Information Request Negotiation Settlement Issued and Cost

Phase II - Contract Administration (LOW COST RESOLUTION RISK)

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Contract Disputes Resolution
Continuum
Selection of
Denial of Negotiations Contracting Outside
Entitlement Rapid Response Disputes Involving the Officer’s Intervention
and Cost Team Review Board Party Principals Decision Options

Phase III - Contract Identified Resolution (MEDIUM COST RESOLUTION RISK)

Selection of
Outside
Intervention Construction Rent-a- Selection of
Options Master Mediation Mini-Trial Judge/Jury Venue Options

Phase IV - Outside Intervention (HIGH COST RESOLUTION RISK)

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 Contract Disputes
Resolution Continuum

Selection of Settlement Non-Binding Binding

Venue Options Hearings Arbitration Arbitration Litigation

Phase V - Arbitration and/or Litigation (MAXIMUM COST RESOLUTION RISK)

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